Naitore v Minister for Home Affairs
[2019] FCCA 1568
•7 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAITORE v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1568 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) (Subclass 572) visa – Review of decision of Administrative Appeals Tribunal – whether Tribunal failed to consider value of course – whether Tribunal made illogical finding – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), cl.573.223, sch.2 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 |
| Applicant: | CAROLINE NKONGE NAITORE |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 375 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 6 June 2019 |
| Date of Last Submission: | 6 June 2019 |
| Delivered at: | Perth |
| Delivered on: | 7 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Mr T Lettenmaier |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS (as made 6 June 2019)
The application be dismissed.
Formal written reasons for judgment be published by Chambers at a later date.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 375 of 2018
| CAROLINE NKONGE NAITORE |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 6 June 2019, this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court.
Having heard the parties, the Court ordered that:
1.The application be dismissed.
2.Formal written Reasons for Judgment be published by Chambers at a later date.
3.The applicant pay the first respondent’s costs fixed in the sum of $5,000.
What follows are the formal written Reasons for Judgment referred to in order 2 of the orders made by this Court on 6 June 2019.
Background
By application filed in this Court on 11 July 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 26 June 2018.
The Tribunal affirmed a decision of a delegate of the now Minister for Home Affairs (the “Minister”) to not grant the applicant a Student (Temporary) (Class TU) (Subclass 572) visa (the “visa”).
The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The Court has before it in evidence a Court Book (“CB”) comprising 146 pages (not including the filing sheet and contents). The Court also received detailed written submissions from the Minister filed 16 May 2019. The applicant did not provide written submissions. She did, however, file an affidavit affirmed 11 July 2018. That affidavit simply refers to the Tribunal decision and the delegate’s decision as attached.
The Minister’s submissions at [3]-[10] summarise the chronology relevant to this matter. The Court adopts this summary as its own. That summary (with minor alterations) provides as follows.
The applicant is a Kenyan citizen who first arrived in Australia on 17 February 2001 on a student visa (CB 56). She lodged an application for the visa on 15 March 2016 (CB 1-8). Her application indicated her highest qualification was a Master of Business Administration and she was proposing to study a Certificate IV in Disability, with an expected course completion date of 2 April 2017 (CB 2, 4 and 15). She included submissions, a resume, her employment history, and various education certificates with her application (CB 9-32).
On 22 March 2016, the applicant responded to the delegate’s request for more information and provided further submissions in relation to the genuine temporary entrant criteria (CB 43-46).
On 27 June 2016, the delegate refused to grant the applicant the visa (CB 53-58). The delegate was not satisfied that the applicant was a genuine applicant for temporary entry and stay as a student, and therefore did not meet cl.572.223(1)(a) of Sch.2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 54).
On 5 July 2016, the applicant applied to the Tribunal for review of the delegate's decision (CB 59-60).
On 26 November 2016, the applicant provided the Tribunal supporting documents, including, submissions regarding the genuine temporary entrant criteria, employment certificates and letters of commendation, a business plan, and education certificates (CB 67-103).
On 13 December 2017, the Tribunal invited the applicant to attend a hearing before it to give evidence and present arguments (CB 106-108). The invitation confirmed that the Tribunal would assess whether the applicant intended genuinely to stay in Australia temporarily and attached a copy of “Direction Number 53 - Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications” (“Direction 53”) (CB 107).
On 5, 8 and 9 January 2018, the applicant provided further documents relating to her education and employment history, including a new Confirmation of Enrolment in a Diploma of Community Services (CB 109-130).
On 15 January 2018, the applicant attended the hearing before the Tribunal (CB 131).
Tribunal Decision
The Tribunal decision appears at CB 138-142 and spans 25 paragraphs. The first nine paragraphs comprise of factual and procedural matters that do not need to be repeated here.
The Tribunal then outlined the legislative provisions relevant to the matter before it:
11.The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b) …
12.In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
• the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
• the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
• if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
• any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
13.The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal then outlined the applicant’s submissions, as follows:
14.The applicant gave evidence regarding the circumstances in her home country. She has parents, one brother and extended family in Kenya while another brother resides in the UK. The applicant submitted she came to Australia in order to study a Graduate Diploma and Master’s degree in Business which was completed in 2004.
15.It was claimed that while in Australia the applicant undertook volunteer work with the elderly and disabled and became interested in the way aged and disabled people are cared for in Kenya compared to Australia. She said she decided to study courses related to business management and elder care in order to open a facility in her own country to care for the elderly in Nairobi. It was claimed that for this reason the applicant has studied in various fields while also being employed as a support worker for Brightwater Care Group.
16.According to the written submission it has always been the applicant’s aim to open her own Aged and Disability Care Centre in Kenya and she plans to return to Kenya after her studies. A Business Plan for a care facility to be located in Nairobi was provided in support of the applicant’s claims. It was submitted the applicant is financially secure, is supported by her family and has always complied with visa conditions including working no more than 40 hours per fortnight.
17.The applicant’s representative referred to previous Tribunal cases where applicants have changed the course of their studies and been found to be genuine students. In addition, it was submitted the applicant has abided by visa conditions, completed all her courses, fulfilled course attendance and progress, has never overstayed, has a clean immigration record, has strong reasons for studying a range of courses and is aware that a student visa is not for maintaining residency in Australia.
The Tribunal then assessed the evidence before it as follows:
18.The Tribunal has considered the evidence submitted by the applicant individually and cumulatively. The Tribunal notes the representative’s submissions regarding previous cases where applicants have been found to be genuine students but each applicant’s matter is decided on its individual facts and merits.
19.In this case, the applicant has been in Australia for a significant period of time and has completed a range of tertiary and vocational courses. Although the applicant claims it has been her goal to open a care facility in her own country since undertaking volunteer work in Australia, it is only since 2016 that she has undertaken studies in the field of disability.
20.The applicant originally studied IT related courses before completing a Master of Business Administration. It was claimed the applicant then decided to focus on caring for the elderly and disabled and based on the evidence provided, she began employment in that field in 2009 as a support worker. The applicant submitted all the courses she had studied are related and will assist her in her goal of opening a facility in Nairobi. The Tribunal accepts that while each of the applicant’s courses may be of benefit to her, they have not been necessary for her to pursue her stated goal.
21.The applicant has achieved high level qualifications in Australia in the IT and Business fields as well as holding vocational qualifications in Human Resources, Marketing, Training and Disability Support. The applicant’s Master’s degree would equip her to be a manager in the health sector and this, together with her years of experience as a support worker has already provided her with the skills necessary to achieve her goals.
22.Although the applicant has immediate and extended family members in Kenya, this does not appear to be sufficient incentive for her return. The applicant has lived independently in Australia for many years, she has steady employment and the financial capacity to continue studying beyond what would be deemed necessary or reasonable in order to achieve her career plans. The Tribunal is not satisfied the applicant’s proposed further study in Australia will add any further value to her, over and above the qualifications and experience she already has. The Tribunal has considered the applicant’s submissions regarding her previously compliant immigration and educational history but considers this is a requirement of all student visa holders. The Tribunal finds the applicant is continuing to enrol in educational courses for the purpose of maintaining residency in Australia, rather than for reasons of genuine professional development or need. For this reason the Tribunal does not consider the applicant to be a genuine student.
23.On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).
Ultimately, the Tribunal found the applicant was using her enrolment to maintain residency in Australia and was not a genuine student. It affirmed the delegate’s decision not to grant the visa as it was not satisfied the applicant met cl.572.223(1)(a) of the Regulations.
Proceedings in this Court
The applicant’s application for judicial review contains two “grounds”, as follows:
The First ground of appeal is ‘under the migration law’ a visa cannot be granted unless the applicant meets the relevant legal requirements that are specified in the ACT and the Regulations, Clause 572.223(1)(a) has not been met by the applicant on the date decision was made. DIBP made its decision on the ground that they are not satisfied my study in Australia will improve my prospects in home country. They have taken my economic circumstances in Kenya not very strong as compared to Australia. I have explained my reasons to study in Australia and my business Plan in Kenya with the Financial assistance from my family.
Second ground of appeal is AAT has mentioned that the applicant claims it has been her goal to open a care facility in her own country. It is since 2016 that she has undertaken studies in the field of disability as mentioned on page 4 Assessment 19.) But it is important for the applicant to gain formal qualifications in addition to her work experience, in order to open a care facility in her home country.
The applicant was unrepresented before the Court today.
The grounds of review are somewhat vague and on their face simply express disagreement with the Tribunal’s decision. This Court now usually finds it appropriate for an unrepresented party in migration proceedings to be afforded an opportunity to explain orally the matters that are said to give rise to their review grounds. This was recently confirmed as an appropriate course of action in the student visa context by Justice Anastassiou in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
The Court explained to the applicant what the Court can and cannot do. It was explained that this Court cannot undertake what is referred to as merits review and cannot grant her the visa she seeks: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 (“Wu Shan Liang”). Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error.
The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions such as this, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
f)where the decision is illogical, irrational or unreasonable: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131] (“SZMDS”); Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44] (“Singh”).
Against that background, the Court asked the applicant to elaborate on her grounds of review and explain to the Court what she thinks the Tribunal “did wrong”.
In effect, the applicant explained that the Tribunal should have allowed her to finish the course she was enrolled in and was wrong to conclude that she had done enough study and community work to return to Nairobi and work in her chosen field of business.
The Court will address these concerns below when considering the applicant’s grounds of review as a whole.
Consideration
Ground 1
The First ground of appeal is ‘under the migration law’ a visa cannot be granted unless the applicant meets the relevant legal requirements that are specified in the ACT and the Regulations, Clause 572.223(1)(a) has not been met by the applicant on the date decision was made. DIBP made its decision on the ground that they are not satisfied my study in Australia will improve my prospects in home country. They have taken my economic circumstances in Kenya not very strong as compared to Australia. I have explained my reasons to study in Australia and my business Plan in Kenya with the Financial assistance from my family.
Ground 1 appears to take issue with the findings in the delegate’s decision. As the Minister correctly noted, this Court has no jurisdiction with respect to the delegate’s decision.
The Court notes that the determinative issue in the delegate’s decision was that the applicant did not meet cl.573.223(1)(a). The determinative issue in the Tribunal’s decision was also that the applicant did not meet that criterion.
To the extent that the applicant takes issue with the Tribunal’s findings, on one level the applicant appears to seek merits review of the Tribunal’s decision. She would, in effect, ask the Court to review the evidence and come to a different conclusion. This Court cannot engage in an impermissible merits review of that sort: Wu Shan Liang.
Further, to the extent that the applicant believes the Tribunal’s finding that she had done enough to fulfil her career objectives in Kenya is “illogical” or “irrational”, the Court notes as follows.
The applicant explained her reasons for studying in Australia, her business plan and the financial assistance for her family. The Tribunal considered these matters both individually and cumulatively. However, the Tribunal was not satisfied that these matters, when weighed with other evidence before it, were sufficient for her to be considered a genuine student.
In making that decision the Tribunal placed weight on the applicant’s lengthy stay in Australia (over 17 years at the time of the decision), her employment and (extensive) study history (including qualifications in disability services and business – notably, a Master of Business Administration and her considerable time working as a carer).
Overall, the Tribunal found that the applicant possessed the necessary skills to pursue her stated objective of opening an aged care facility in Kenya.
The Tribunal considered the factors specified in Direction 53 – specifically, the extent of the applicant’s personal ties to her home country, her circumstances in Australia, the value of the proposed course to the applicant’s future, and the applicant’s immigration history.
The Tribunal considered all relevant matters and weighed the evidence before it to come to a conclusion that, while adverse to the applicant, was reasonably open for it to make.
It cannot be said in these circumstances that the Tribunal’s decision was illogical or irrational or unreasonable: per the principles outlined in SZMDS, Li and Singh.
No error arises within the context of the concerns raised in ground 1. Ground 1, accordingly, fails.
Ground 2
Second ground of appeal is AAT has mentioned that the applicant claims it has been her goal to open a care facility in her own country. It is since 2016 that she has undertaken studies in the field of disability as mentioned on page 4 Assessment 19.) But it is important for the applicant to gain formal qualifications in addition to her work experience, in order to open a care facility in her home country.
It appears the applicant is referring to [19] in the Tribunal’s decision, where the Tribunal stated:
19. In this case, the applicant has been in Australia for a significant period of time and has completed a range of tertiary and vocational courses. Although the applicant claims it has been her goal to open a care facility in her own country since undertaking volunteer work in Australia, it is only since 2016 that she has undertaken studies in the field of disability.
It is not clear what the applicant purports to be stating in this ground. The Court is of the view that she may be suggesting that the Tribunal overlooked the need for “formal qualifications” – ie, those studies that are specific to the disability sector that would enable her to meet her goal to open her own care facility in Kenya.
It cannot be said that the Tribunal erred in this regard.
The Tribunal did consider the formal studies in question but was satisfied that the applicant already possessed sufficient qualifications and skills to enable her to achieve her career goals (at [20]-[21]).
At [22] the Tribunal addresses, and rejects, the importance of any further formal qualifications:
…The applicant has lived independently in Australia for many years, she has steady employment and the financial capacity to continue studying beyond what would be deemed necessary or reasonable in order to achieve her career plans. The Tribunal is not satisfied the applicant’s proposed further study in Australia will add any further value to her, over and above the qualifications and experience she already has.
The Tribunal considered the value of any future study and was not satisfied that it was necessary and that, in all the circumstances, further study was being undertaken for genuine professional development.
The Tribunal did not overlook any relevant matter here. It made an assessment of the evidence before it to come to a conclusion that the applicant was continuing to enrol for the purpose of maintaining residency – as opposed to engaging in genuine study. No relevant evidence was overlooked in this regard and no irrelevant evidence was relied on.
Reading [19]-[22] as a whole, it is clear that the Tribunal had a reasonable evidentiary basis to come to the conclusion it came to. While this Court might have come to a different conclusion, that is not the relevant test here. The question before this Court is whether the Tribunal’s findings were open to it on the evidence. Here, the Court finds that they were.
There is no error of the sort alleged in ground 2.
Ground 2 is, accordingly, dismissed.
Conclusion
The Court has been unable to identify any jurisdictional error in the Tribunal’s decision as pleaded in the applicant’s ground of review, or otherwise.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 7 June 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Statutory Construction
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